Delhi District Court
State vs . Mohan Thakur on 26 June, 2015
IN THE COURT OF MS. SUGANDHA AGGARWAL: CHIEF
METROPOLITAN MAGISTRATE (WEST) : DELHI.
State Vs. Mohan Thakur
FIR No.97/09
PS Punjabi Bagh
Unique case ID no.02401R0582232011
JUDGMENT
(a) Sr. No.of the case 105/3
(b) Date of offence 03.03.2009
(c) Complainant HC Jai Bhagwan515/W
(d) Accused Mohan Thakur, S/o Sh. Pyarelal Thakur,
R/o A2/96 Sector - 3, Rohini, Delhi.
(e) Offence Section 3 of Delhi Prevention of
Defacement of Public Property Act
(f) Plea of accused Pleaded not guilty.
(g) Final Order Acquitted
(h) Date of Institution 23.04.2009
(i) Date when judgment 05.06.2015
was reserved
(j) Date of judgment 26.06.2015
1. This judgment shall dispose off the case filed under Section 3 of Delhi Prevention of Defacement of Public Property Act against the accused.
2. The facts as averred in the chargesheet are that on 03.03.2009, HC Jai FIR No. 97/2009 Page No.1 of 11 Bhagwan and Constable Vinod were on patrolling duty. At about 9.15 PM, when they reached Pragati Apartment, Club Road, Paschim Puri, Delhi they saw that one advertisement board was affixed on electricity pole at the Tpoint of Road No 29. The said board was of Rudrakshi Sarees, Suits and Lehngas, A3/264, Paschim Vihar, Delhi63 Rani Bagh, Pitampura. It is further alleged that the accused himself has got the said board affixed for his benefit and thus defaced the public property. Hence present chargsheet has been filed alleging offence under Section 3 of Delhi Prevention of Defacement of Public Property Act.
3. After completion of investigation, chargesheet was filed. Accused was supplied with copies in compliance of Section 207 Code of Criminal Procedure, 1973. Charge for the offence punishable under Section 3 of Delhi Prevention of Defacement of Public Property Act was framed against the accused vide order dated 24.05.2010 to which he pleaded not guilty and claimed trial.
4. In order to prove the case, prosecution has examined three witnesses. FIR No. 97/2009 Page No.2 of 11
PW1 Ct. Anand Kumar has deposed that on 27.03.2009 he was posted at PS Punjabhi Bagh and that he had joined the investigation of the present case with HC Bhagwan Sahai. He further deposed regarding the interrogation and arrest of the accused by the IO from A3/264, Rudrakshi Showroom, Paschim Vihar, New Delhi. PW1 identified the arrest memo and the personal search memo of the accused as Ex.PW1/A and Ex.PW1/B and his signatures on both the documents at point A. PW1 was crossexamined by the accused and discharged.
5. PW2 ASI Jai Bhagwan, and PW3 HC Vinod Kuamr have deposed that on 03.03.2009 they were on patrolling duty and at about 09.15 pm when they reached Pragati Appartment, Club Road, Paschim Puri, they saw that one advertisement board was affixed on electricity board at the Tpoint Road No 29. The said board was of Rudrakshi Sarees, Suits and Lehngas, A3/264, Paschim Vihar, Delhi63 Rani Bagh, Pitampura. They have further deposed that PW2 prepared rukka ExPW2/A and handed over to Constable Vinod Kumar for registration of FIR. PW2 prepared site plan Ex.PW2/B and Constable Vinod FIR No. 97/2009 Page No.3 of 11 brought the copy of FIR registered at the spot. PW2 and PW3 were crossexamined by the accused and discharged. Thereafter PE was closed.
6. After closure of prosecution evidence, statement of accused was recorded under Section 313 of Code of Criminal Procedure, 1973. Entire incriminating evidence was put to him. He denied all the allegations and stated that he is innocent and has been falsely implicated in this case. Accused opted to lead defence evidence.
7. In defence evidence, accused examined himself as DW1 wherein he admitted that he is running a business in the name and style of M/s Rudrakshi Garments and got the advertisement board in question affixed. He further deposed that he has engaged the services of an advertising company i.e. M/S Graphisads Pvt Ltd. DW1 further deposed that the said advertising company had the authorization and permission from the MCD to affix such advertisement boards on the Electric Poles affixed on the Roads within the West Zone of MCD. The pole in question is also one of such poles situated on the Road FIR No. 97/2009 Page No.4 of 11 within the West Zone of MCD. DW1 has further deposed as the board was affixed with the permission from the MCD, therefore, he has not committed any crime. DW1 was crossexamined by Ld. APP and discharged.
8. DW2 Sh. R.N. Sharma, Director of M/S Graphisads Pvt. Ltd. deposed that he has got the contract from the accused for advertising for his firm through fixing advertisement board. He further deposed that one such board was affixed on the electric pole in Pragati Apartment, Club Road, Paschim Puri, Near T point, Road no. 29, New Delhi. He further depose that the accused was charged for the same vide bill dated 28.02.2002 and identified the copy of the said bill as EXDW2/A. DW2 has further deposed that M/S Rashtriya Advertising has the permission from MCD to affix such boards and with whom the Company of DW2 has oral agreement to display the said advertisement boards. DW2 has identified the copy of the permission letter of the MCD as EX DW2/B. DW2 was crossexamined by Ld. APP and discharged.
FIR No. 97/2009 Page No.5 of 11
9. DW3 Sh. Kuldip Singh who was the Manager (Legal) of M/s Rashtriya Advertising has deposed that the company has been granted permission from the MCD to affix advertising Board on the electricity street light poles on Roads falling in the West Zone of MCD. He further deposed that their company is the sister concern of M/S Graphisads Pvt. Ltd and hence the said company was also permitted to display advertising boards in terms of the permission obtained by the MCD. DW3 was crossexamined by Ld. APP and discharged. Thereafter defence evidence was closed.
10.I have heard the arguments on behalf of both the parties.
11. It is argued by Ld. APP that the accused has admitted that the said advertisement was fixed at his direction and the alleged permission from MCD was granted to M/S Rashtriya Advertising. There is no written documents showing that M/s Graphisads Pvt. Ltd was sister concern of M/S Rashtriya Advertising and that the said MCD permission has been extended to M/S Graphisads Pvt. Ltd and hence in these circumstances the guilt of the accused is proved beyond FIR No. 97/2009 Page No.6 of 11 reasonable doubt.
12.Per Contra, it is argued that by the Ld. Defence Counsel that as per the case of the prosecution itself only a board has been affixed which does not amount to defacement. It is not that any poster has been pasted on the wall. Hence, there is no defacement of the property. It is further argued that the photographs on which the prosecution is relying has not been proved as per law. It is further argued that the said advertisement board was affixed and such affixing was duly permitted by the MCD and therefore the accused cannot be held guilty for offence under Section 3 of Delhi Prevention of Defacement of public property.
13.I have considered the rival contentions and have perused the record.
14. In the present case, the prosecution has alleged that on 3.3.2009, accused had affixed a board thereby advertising about his shop on an electric pole in front of Pragati Apartments, Club Road, Paschim Puri, New Delhi. In order to prove its case, the prosecution has to prove the following ingredients: FIR No. 97/2009 Page No.7 of 11
(i) That the Board was affixed on a property by the accused.
(ii)Fixing of the said Board had caused defacement of the property.
(iii)The said board was affixed by the accused without any due permission.
(I) BOARD WAS AFFIXED ON A PROPERTY BY THE ACCUSED
15.In order to prove the fact that the Board was affixed on the electric pole, the prosecution has examined PW2 and PW3. Both the said witnesses have deposed that on 03.03.2009 at about 9.15 PM when they had reached at Pragati Apartment, Club Road, Paschim Puri near Tpoint Road No.29, they saw one board on the electric pole on which "Rudrakshi Sarees, Suits and Lehngas, A3/264, Paschim Vihar, New Delhi63, Rani Bagh, Pitampura" was written and the said board was visible to the public. During crossexamination both the witnesses maintained their stand. Further this is an admitted fact by the accused that the said board was affixed with his knowledge. Hence the fact that the board was affixed on the electric pole situated at Pragati Apartment, Club Road, Paschim Puri near Tpoint Road No.29 by the FIR No. 97/2009 Page No.8 of 11 accused has been duly proved by the prosecution.
(II) BOARD HAD CAUSED DEFACEMENT TO THE PROPERTY
16.Now the prosecution has to prove that the fixing of the said board had caused defacement to the property. Firstly there is no evidence on record in this regard. There is no witness examined by the prosecution stating that the said board was defacing the property. Further the Hon'ble High Court of Delhi has held in the case of T.S. Marwah Vs. State 2008 (4) JCC 2561 that placing of board on electricity pole does not amount to defacement by writing or marking. Even Section 3 of Delhi Prevention of Defacement of Public Property Act, states that the defacement will be caused if any marking or writing is done, which is not the situation in the present case. Hence the prosecution has miserably failed to prove that fixing the board on the electric pole has caused defacement to the property.
(III) BOARD WAS AFFIXED BY ACCUSED WITHOUT ANY DUE PERMISSION.
17. As per the defence taken by the accused, he had engaged the services of M/s Graphicads Pvt. Ltd. for advertising for his business. Accused FIR No. 97/2009 Page No.9 of 11 has examined DW1 wherein he had stated that M/s Graphicads Pvt. Ltd. had affixed the said board as they had the permission from MCD to affix such advertising boards on the electric poles. Accused has also examined DW2 who is the Director of M/s Graphicads Pvt. Ltd. He has also corroborated the facts deposed by DW1. He further stated that the contract of advertising about the business of accused was given to M/s Graphicads Pvt. Ltd. DW2 has also brought the bill which was raised for the said contract and copy of which is Ex.DW2/A. It is further deposed by DW2 that the said MCD permission was granted to Rashtriya Advertising with whom they had oral agreement to use the said permission to display the advertising board. Thereafter, accused examined DW3 Kuldeep Singh, Manager (Legal) of Rashtriya Advertising. He had brought the original permission letter dated 15.12.2008 of MCD, copy of which is placed on record as Ex.DW1/1. As per Ex.DW1/1, Rashtriya Advertising was duly permitted by the MCD to affix such advertising board on electric poles of MCD Road of West District. DW3 further deposed that M/s Graphicads Pvt. Ltd. FIR No. 97/2009 Page No.10 of 11 was sister concern of Rashtriya Advertising and was also authorized to use the said permission. Hence the testimony of defence witnesses has duly proved that accused had affixed the said advertising board after taking permission from MCD.
18. In view of above discussion, I am of the considered opinion that the prosecution has failed to prove the fact that the fixing of board in question had caused any defacement to the property and on the other hand the accused has duly proved that he had affixed the said board after taking permission from MCD. Accordingly, the prosecution has miserably failed to prove the guilt of accused beyond reasonable doubt. Hence accused is acquitted for offence under Section 3 of Delhi Prevention of Defacement of Public Property Act.
(Sugandha Aggarwal) Chief Metropolitan Magistrate, (West) :Delhi Announced in open Court on 26th day of June, 2015 FIR No. 97/2009 Page No.11 of 11